Citation Nr: 0312336
Decision Date: 06/10/03 Archive Date: 06/16/03
DOCKET NO. 00-00 898 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Entitlement to compensation for rectal disability including
fissures as a result of a colonoscopy at a VA facility
pursuant to 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
INTRODUCTION
The veteran had active service from May 1976 to February
1980.
This appeal to the Board of Veterans' Appeals (the Board) is
from action taken by the Department of Veterans Affairs (VA)
Regional Office (VARO) in Salt Lake City, Utah with regard to
procedures that allegedly took place at a VA facility in
Nevada. The Board notes that the veteran's claim was filed
after October 1, 1997, and thus falls within revised
provisions of 38 U.S.C.A. § 1151.
The veteran provided testimony before the undersigned
Veterans Law Judge at the VARO in August 2002, a transcript
of which is of record.
During the course of the current appeal, the veteran withdrew
the issue of entitlement to an increased evaluation for
service-connected occipital headaches, currently evaluated as
30 percent disabling.
REMAND
In October 2002, the Board undertook additional development
of the claim pursuant to authority granted by 67 Fed. Reg.
3,099, 3,104 (Jan. 23, 2002) (now codified as 38 C.F.R.
19.9(a)(2)). The development requested by the Board was in
two parts: (a) acquisition of photocopies of pertinent
records from the VA Medical Center in Las Vegas, Nevada; and
(b) conduction of a VA examination to include a response by
VA examiners to specific questions with regard to the case.
The records obtained pursuant to (a) above are now associated
with the claims file. However, the veteran failed to appear
for the scheduled examination pursuant to (b) above, and as a
result, there is neither a clinical report from such an
examination nor the requested opinions which were to have
been rendered as a result thereof.
The Board provided the veteran notice of the development as
required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2003) (now codified as 38 C.F.R. 20.903. The
veteran did not respond to the notice.
In Disabled American Veterans et al v. Secretary of Veterans
Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003),
the United States Court of Appeals for the Federal Circuit
(CAFC) determined that 38 C.F.R. 19.9(a)(2) is inconsistent
with 38 U.S.C. 7104(a). The CAFC invalidated 38 C.F.R. §
19.9(a)(2) because, in conjunction with the amended
regulation codified at 38 C.F.R. § 20.1304, it allows the
Board to consider additional evidence without having to
remand the case to the RO for initial consideration and
without having to obtain the appellant's waiver. The CAFC
held that this is contrary to the requirement of 38 U.S.C. §
7104(a).
The CAFC also determined that 38 C.F.R. § 19.9(a)(2)(ii),
which provides "no less than 30 days to respond to notice,"
is contrary to 38 U.S.C. § 5103(b). The CAFC invalidated 38
C.F.R. § 19.9(a)(2)(ii), which requires the Board "to
provide the notice required by 38 U.S.C. [§] 5103(a)" and
"not less than 30 days to respond to the notice," because
it is contrary to 38 U.S.C. § 5103(b), which provides the
claimant one year to submit evidence.
In accordance with the October 2002 development, the Board
obtained extensive VA records. This evidence has not been
considered by the RO.
The Board observes that additional due process requirements
may be applicable as a result of the enactment of the
Veterans Claims Assistance Act of 2000 (VCAA) and its
implementing regulations. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45, 620
(Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a)).
Accordingly, this case is REMANDED for the following action:
1. The appellant has the right to submit
additional evidence and argument on the
matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
2. The RO should review the claims file
to ensure that any notification and
development action required by the VCAA
of 2000 is completed. In particular, the
RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Act (38 U.S.C.A. §§ 5102, 5103,
5103A and 5107) are fully complied with
and satisfied, including in accordance
with Quartuccio v. Principi, 16 Vet. App.
183, 186-87 (2002).
3. The veteran should be afforded the
opportunity to be examined by a VA
surgeon, or other appropriate specialist,
who has not treated him, if possible, in
order to determine (a) whether he has
additional disability as a result of VA
treatment or evaluation to include the
April 2000 colonoscopy at the VAMC Las
Vegas; and (b) whether the proximate
cause of such disability, if found, was
carelessness, negligence, lack of proper
skill, error in judgment or similar
instance of fault on the part of VA or an
event not reasonably foreseeable. The
written opinion in response to these
questions should be detailed and
annotated to the evidence at hand.
When the RO schedules the veteran for
examination and notifies him thereof, it
should be pointed out that a medical
opinion is necessary and that additional
clinical evidence obtained pursuant to
such an examination may be well to his
benefit. The provisions of 38 C.F.R.
§ 3.655 (2002) should be provided to the
veteran.
If the veteran does not to appear for the
examination, the case should nevertheless
be submitted for the aforecited
assessment by a surgeon who has not
treated him for written opinions as
requested above, based on the entire
evidence of record.
4. The RO should then adjudicate the
issue of entitlement to compensation for
rectal disability including fissures as a
result of a colonoscopy at a VA facility
pursuant to 38 U.S.C.A. § 1151. This
should include consideration of all
evidence of record, including the
evidence added to the record since the
most recent Supplemental Statement of the
Case.
If the benefits requested on appeal are
not granted to the appellant's
satisfaction, the RO should issue a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant action taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations pertaining to the claims
currently on appeal. A reasonable period
of time for a response should be
afforded.
Thereafter, the case should be returned
to the Board for further appellate
review, if otherwise in order. By this
remand, the Board intimates no opinion as
to any final outcome warranted. No
action is required of the appellant until
he is notified by the RO.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the United States Court of Appeals for
Veterans Claims for additional development or other
appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1,
Part IV, directs the ROs to provide expeditious handling
of all cases that have been remanded by the Board and the
Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-
38.03.
_________________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).